The document discusses divorce law in Alicante Province, Spain. It explains that (1) Spanish law will apply to divorce proceedings if both spouses share nationality or are normally resident in Spain, (2) the standard marital property classification in Alicante is separation of property, and (3) while custody is usually awarded to the mother, shared custody is becoming more common, especially in the Valencia region where Alicante is located.

1. Regional Divorce Law in Spain:
Alicante Province

2. If you are thinking about getting divorced in Spain
please make sure to view:
10 Must Know Facts For Anyone Planning To
Divorce in Spain
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3. Which law Applies?
If a couple who are both English and were married in
England but live in the Alicante region, which law is applied
to their divorce proceedings?
How about a couple who possess different nationalities, both
having been resident in Alicante?
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4. Which law Applies?
The Spanish Civil Code (Art. 107) provides that the laws
applicable to divorce proceedings in Spain shall be:
1) The law of the country of which the spouses share a
common nationality
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5. Which law Applies?
2) If there is not a common nationality, the law of the land in
which they are both normally resident
3) If the spouses are not normally resident in the same
country then the last country in which they were resident
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6. Which law Applies?
So, should a couple married in England apply for divorce
proceedings in Spain then the Spanish court shall apply the
law applicable in England.
However, the same couple could request that Spanish law be
applied if they are both normally resident in Spain.
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7. Which law Applies?
Spanish law is also applied in the case of a mixed nationality
marriage where both spouses are ordinarily resident in
Spain.
Given the number of people in this situation it is therefore
important to consider the application of Spanish divorce laws.
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8. Spanish Divorce Laws
In order to determine the Spanish legal rules that govern
matters such as the distribution of marital assets upon a
divorce it is first necessary to ascertain the 'system' of
economic relations marriage that the couple have agreed to.
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9. Spanish Divorce Laws
The two most important 'systems' of marriage are:
1) Sociedad de Gananciales
2) Separación de Bienes
Briefly, these can be defined as follows:
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10. Spanish Divorce Laws
Sociedad de Gananciales
Upon marriage a 'union of assets' is formed whereby all
future assets acquired during the course of the marriage
pertains to this 'union' and which upon dissolution of the
marriage should be shared between the spouses.
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11. Spanish Divorce Laws
Separación de Bienes
Both of the spouses retain all rights to assets acquired during
the marriage. Any assets that are bought with common funds
are owned in the proportion in which the spouses contributed
to the purchase of the asset.
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12. Spanish Divorce Laws
Separación de Bienes
Upon dissolution of the marriage it is necessary to determine
ownership of assets.
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13. Spanish Divorce Laws
By Spanish Civil Code (Article 1315) the 'system' of marriage
that applies is determined:
1) By the couple themselves in a formal declaration before a
notary (capitulaciones matrimoniales)
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14. Spanish Divorce Laws
2) By the local prevailing law enacted by the regional
parliament
3) In the absence of local legislation, by the Spanish Civil
Code
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15. Spanish Divorce Laws
So, if a married couple did not make a formal declaration
stating a preference for one particular system (typically the
case), we then must analyse any regional laws that may
establish the 'system' of marriage to prevail in that region.
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16. Marriage Classification in Alicante
Law 10/2007 states that the classification of a marriage is
that of ‘separación de bienes’.
Article 3 of the same law states that the law has effect on all
those who are resident in Alicante as per the Statute of
Valencia (Alicante’s Laws are approved in the regional
parliament in Valencia).
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17. Marriage Classification in Alicante
In effect the law therefore impacts on those who are
continually resident in the region for a period of two years
(who voluntarily become subject to the law of the Comunidad
de Valencia) or ten years by default.
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18. Division of Marital Assets upon a
Divorce in Alicante
The procedure for the division of assets upon the ending of a
marriage that is classified as a 'sociedad de gananciales' is
governed by the Spanish Civil Code. For more information go
to: Division of Assets
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19. Child Custody in Alicante
Typically, following a divorce any children will be placed in
the custody of one of the parents – almost always their
mother.
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20. Child Custody in Alicante
However, another possibility is the shared custody of children
which may be defined as:
‘the legal situation in which, following a separation or
divorce, both parents have legal custody of the children
equally, in terms of the conditions and rights that are
conferred in this regard.’
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21. Child Custody in Alicante
While contemplated in the legislation reforming much of
family law in Spain (Law 15/2005) the concept of joint
custody has yet to really take off in Spain.
However, this may be changing with new laws being
introduced in a number of autonomous communities in Spain
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22. Child Custody in Alicante
The Comunidad de Valencia, of which Alicante Province is
part, is one of the regions that has introduced changes to
the law (Law 5/2011) in order to implement a system
whereby, in the absence of an agreement to the contrary
between the parents, joint custody should be awarded by
the judge as a general rule.
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23. Child Custody in Alicante
However, the central government has launched an appeal to
the Constitutional Court on the basis that the Valencia
Region ought not to have the legal competency to enact laws
within this sphere.
While the matter is being determined in the Constitutional
Courts, the concept of shared custody is applied in the local
court.
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24. Child Custody in Valencia
Following a further twist, a decision of the Spanish Supreme
Court in July 2011 has stated that 'shared custody‘ should
not be applied only as an 'exceptional measure‘ but rather
should be considered as 'the most normal'.
This would appear to cement the Valencia Regional Law
further in place by making application of shared custody a
more typical outcome.
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25. Other Important Aspects of Divorce Law
In the absence of regional laws determining such
matters, the Civil Code governs when considering issues
related to divorce and separation such as inheritances and
common liability for personal bankruptcy of one of the
spouses.
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26. Other Important Aspects of Divorce Law
Other State laws also have a national reach and accordingly
may need to be taken into account in the Valencia region
depending on the particular situation.
For example, visitation rights of grandparents and also
relevant to many is the family law applicable when a couple
are not married.
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27. For details of the services available from local
English-speaking family law experts in Alicante,
go to:
Family Lawyers in Alicante Province
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